BILL ANALYSIS                                                                                                                                                                                                    



                                                                SB 928
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
                                           
           BILL NO:    SB 928
           AUTHOR:     Simitian
           AMENDED:    March 25, 2010
           FISCAL:     No                                   HEARING  
           DATE:April 5, 2010
           URGENCY:    No                                  CONSULTANT:     
               Rachel Machi                                Wagoner
            
           SUBJECT  :    CONSUMER PRODUCTS: CONTENT INFORMATION

            SUMMARY  :    
           
            Existing federal law  : 

           1) Pursuant to the Consumer Product Safety Act, provides  
              protection of the public against unreasonable risks of  
              injury associated with consumer products, largely by  
              developing uniform safety standards for those products.  

           2) Pursuant to the Toxic Substances Control Act, states that  
              adequate data should be developed with respect to the  
              effect of chemical substances and mixtures on health and  
              the environment and that the development of such data  
              should be the responsibility of those who manufacture and  
              those who process such chemical substances and mixtures.

            Existing California law  :

           1) Requires the manufacturer of a cosmetic product to disclose  
              to the Department of Public Health a list of any ingredient  
              in their product that is a chemical which has been  
              identified to cause cancer or reproductive damage, pursuant  
              to the California Safe Cosmetics Act of 2005.

           2) Requires the Department of Toxic Substances Control (DTSC)  
              to adopt regulations to: 1) establish a process to identify  
              and prioritize chemicals or chemical ingredients in  
              products that may be considered a "chemical of concern;" 2)  
              establish a process for evaluating chemicals of concern in  









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              products, and their potential alternatives in order to  
              determine how best to limit exposure or to reduce the level  
              of hazard posed by a chemical of concern, as specified; and  
              establish a process that includes an evaluation of the  
              availability of potential alternatives and potential  
              hazards posed by alternatives, as well as an evaluation of  
              critical exposure pathways.

           3) Requires DTSC to establish a Toxics Information  
              Clearinghouse for the collection, maintenance, and  
              distribution of specific chemical hazard traits and  
              environmental and toxicological end-point data. The bill  
              also requires the Office of Environmental Health Hazard  
              Assessment to evaluate and specify the hazard traits and  
              environmental and toxicological end-points and any other  
              relevant data that are to be included in the clearinghouse.

            This bill  :

           1) Makes legislative findings regarding the federal Consumer  
              Product Safety Act and the authority of states to impose  
              stricter requirements if the state standard provides a  
              higher degree of protection than the federal standard.

           2) Defines various terms, including "designated consumer  
              product." 

           3) Requires a manufacturer or wholesaler of a designated  
              consumer product to provide notice of all substances that  
              are contained in their product.

           4) Provides that notice is fulfilled by the posting of  
              required information on a manufacturer's or wholesaler's  
              web site; manufacturers or wholesalers must establish a web  
              site for compliance with this bill.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, there are  
              currently more than 80,000 chemicals approved under federal  
              law for use in the United States.  Each day, a total of 42  
              billion pounds of chemical substances are produced or  
              imported in the U.S. for commerical and industrial uses.   









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              An additional 1,000 new chemicals are introduced into  
              commerce each year.  Approximately one new chemical comes  
              to market every 2.6 seconds and global chemical production  
              is projected to double every 25 years.  The average U.S.  
              consumer today comes into contact with 100 chemicals per  
              day.  In 2009, the U.S. Centers for Disease Control  
              conducted the Fourth National Report on Human Exposure to  
              Environmental Chemicals which measured 212 chemicals in the  
              blood and urine of a representative population of  
              California.  California consumers and businesses are  
              becoming increasingly aware and concerned about the  
              abundance of chemicals that they are exposed to in the  
              products that they use on a day-to-day basis in their homes  
              and in the workplace.  However, they lack the ability to  
              make informed decisions about the chemicals in the products  
              that they purchase because product manufacturers are not  
              required to disclose the chemicals in the products.  

              Additionally the author notes that there is a vast gap in  
              data concerning how Californians are being exposed to these  
              chemicals, at what level and frequency they are being  
              exposed and what the impacts are of the individual or  
              synergistic, long or short term, low or high concentration  
              exposures because there is a lack of chemical ingredient  
              disclosure on consumer products.  Given the magnitude of  
              chemical production, use and exposure, it is crucial to  
              construct a better understanding of these exposures.

              According to the author, SB 928 would empower California  
              consumers and businesses to access basic information about  
              the ingredients in their products and make informed  
              decisions about the type of products that they purchase and  
              use, and would help construct a clearer picture of where  
              chemicals are used in consumer products and how that  
              impacts exposures.

            2) The Toxic Substances Control Act (TSCA)  .  The federal Toxic  
              Substances Control Act of 1976 (TSCA) authorizes USEPA to  
              require reporting, record-keeping and testing requirements,  
              and set restrictions relating to chemical substances and/or  
              mixtures.  Certain substances are generally excluded from  
              TSCA, including, among others, food, drugs, cosmetics and  
              pesticides.  TSCA addresses the production, importation,  









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              use, and disposal of specific chemicals.  Among its  
              provisions, TSCA requires USEPA to maintain the TSCA  
              inventory which currently contains more than 83,000  
              chemicals.  As new chemicals are commercially manufactured  
              or imported, they are placed on the list. 

             TSCA requires the submission of health and safety studies  
             which are known or available to those who manufacture,  
             process, or distribute in commerce specified chemicals; and  
             allows USEPA to gather information from manufacturers and  
             processors about production/import volumes, chemical uses  
             and methods of disposal, and the extent to which people and  
             the environment are exposed. 


             Data Gaps in TSCA - Within TSCA there are several areas  
             where there are vast gaps in data available about chemicals  
             currently in use in the United States.  For example:



                            TSCA places the responsibility for  
                     conducting health and environmental impact testing  
                     on USEPA, not the producer of the chemical substance  
                     or mixture.  To date, USEPA has conducted testing  
                     and published data on 200 chemicals on the inventory  
                     of 83,000 chemicals.  



                            TSCA does not provide for the review of  
                     synergistic health and environmental impacts of the  
                     potential interactions of the thousands of chemicals  
                     and the potential mulitude of exposures and exposure  
                     pathways.



                            There were 62,000 chemicals in use in 1976  
                     when TSCA was adopted into federal law.  TSCA  
                     provides for a grandfather clause for those 62,000  
                     chemicals.










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                            TSCA provides chemical producers protections  
                     for confidential business information (CBI),  
                     allowing producers to not publicly disclose  
                     information about new chemicals entering commerce.   
                     To date, the USEPA has reported that nearly  
                     two-thirds of the new chemicals reported under TSCA  
                     over the last 33 years have claimed CBI protection.



             Current Actions under TSCA - On September 29, 2009, USEPA  
             Administrator Lisa Jackson announced enhancements to the  
             agency's current chemicals management program under TSCA in  
             an effort to identify chemicals that pose a concern to the  
             public, move quickly to evaluate them and determine what  
             actions need to be taken to address the risks they may pose,  
             and initiate appropriate action.  EPA will produce "chemical  
             action plans," which will target the agency's regulatory  
             efforts on chemicals of concern.



             On December 30, 2009, EPA posted action plans on phthalates,  
             perfluorinated chemicals, polybrominated diphenyl ethers and  
             short-chain chlorinated paraffins. These action plans  
             summarize available hazard, exposure, and use information;  
             outline some of the risks that each chemical may present;  
             and identify specific steps that USEPA is taking to address  
             those concerns.



             However, even with the enhanced efforts, in 2009 the  
             Government Accountability Office found USEPA's  
             implementation of TSCA to be "high-risk" because "EPA has  
             failed to develop sufficient chemical assessment information  
             on the toxicity of many chemicals that may be found in the  
             environment as well as tens of thousands of chemicals used  
             commercially in the United States" and concluded by stating  
             that Congress may wish to amend TSCA and extend the EPA more  
             explicit authority.  At a recent Congressional hearing in  









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             February 2010, the GAO director again reiterated concerns,  
             brought up new insufficiencies in USEPA's use of the  
             authority and direction of TSCA, and called for legislative  
             reform of TSCA.  USEPA's own Inspector General additionally  
             declared on February 17, 2010, a need to make internal  
             reforms to more strictly enforce TSCA and set timelines for  
             how long confidential business information can be kept  
             secret rather than allowing for indefinite disclosure  
             protections.


            1) Extensive deficiencies in the federal regulation of  
              chemicals  .  Of all federal environmental statutes, the  
              Toxic Substances Control Act of 1976 (TSCA) is the only law  
              that is intended to enable regulation of chemicals both  
              before and after they enter commerce.  Numerous academic,  
              legal, and scientific bodies have all concluded that TSCA  
              has not served as an effective vehicle for the public,  
              industry, or government to assess the hazards of chemicals  
              in commerce.  After decades of implementation, TSCA has  
              largely failed to provide the necessary information to  
              assess the health and environmental effects for tens of  
              thousands of chemicals in commerce.
               
               TSCA's weaknesses have far-reaching effects.  Lacking  
              comprehensive and standardized information on toxicity and  
              eco-toxicity for most chemicals, it is very difficult for  
              businesses and industry to choose safer chemicals or to  
              identify and reduce the use of hazardous chemicals in their  
              supply chains.  Government agencies do not have the  
              information they need to systematically identify and  
              prioritize chemical hazards, nor the legal tools to  
              efficiently mitigate known hazards.

            2) Green Chemistry in California  .  For more than a decade,  
              California has struggled to fill in the gaps in TSCA  
              chemical policy.  The Legislature has considered nearly a  
              hundred bills proposing chemical bans and broader chemical  
              policies for California, heard testimony from "battling  
              scientists" and was interested in developing a broader,  
              more comprehensive approach to chemicals policy. 

              In 2003, the Senate Environmental Quality Committee and the  









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              Assembly committee on Environmental Safety and Toxic  
              Materials commissioned a report from the University of  
              California to investigate the current legal and regulatory  
              structure for chemical substance and report on how a  
              California chemicals policy could address environmental and  
              health concerns about chemical toxicity, build a long-term  
              capacity to improve the design and use of chemicals, and  
              understand the implications of European policy on the  
              California chemical market.

              In 2006, the U.C. Berkeley authors presented the  
              commissioned report, Green Chemistry in California: A  
              Framework for Leadership in Chemicals Policy and Innovation  
              and made a connection between weaknesses in federal policy,  
              namely TSCA, and the health and environmental damage  
              happening in California.  The report broadly summarized  
              their findings into what they called the "three gaps".
           
                1.     Data Gap:  There is a lack of information on which  
                  chemicals are safe, which are toxic, and what chemicals  
                  are in products.  The lack of access to chemical data  
                  creates an unequal marketplace.  California businesses  
                  cannot choose and make safer products and respond to  
                  consumer demand without ingredient disclosure and  
                  safety testing.

                2.     Safety Gap:  Government agencies do not have the  
                  legal tools or information to prioritize chemical  
                  hazards.  Under TSCA only 5 chemicals out of 83,000  
                  have been banned since 1976.  The California  
                  legislature has frequently addressed this problem by  
                  approving individual chemical bans.  Chemical bans come  
                  before the legislature because there are very few other  
                  mechanisms in place at the federal or state level that  
                  can remove harmful chemicals from the marketplace.

                3.     Technology Gap:  There is an absence of regulatory  
                  incentives, market motivation which stems from the data  
                  gap, and educational emphasis on green chemistry  
                  methodologies and technologies.  In order to build a  
                  substantial green chemistry infrastructure, a  
                  coincident investment and commitment must be made to  
                  strengthen industrial and academic research and  









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                  development.

           In 2007, the California Environmental Protection Agency  
           launched California's Green Chemistry Initiative within the  
           Department of Toxics and Substances Control (DTSC).  The  
           California Green Chemistry Initiative Final Report released in  
           December 2008 included the following six policy  
           recommendations for implementing this comprehensive program in  
           order to foster a new era in the design of a new consumer  
           products economy - inventing, manufacturing and using  
           toxic-free, sustainable products.  

              1.   Expand Pollution Prevention and product stewardship  
                programs to more business sectors to focus on prevention  
                rather than simple source reduction or waste controls.

              2.   Develop Green Chemistry Workforce Education and  
                Training, Research and Development and Technology  
                Transfer through new and existing educational program and  
                public/private partnerships.

              3.   Create an Online Product Ingredient Network to  
                disclose chemical ingredients for products sold in  
                California, while protecting trade secrets.

              4.   Create an Online Toxics Clearinghouse, an online  
                database providing data on chemical, toxicity and hazard  
                traits to the market place and public.

              5.   Accelerate the Quest for Safer Products, creating a  
                systematic, science-based process to evaluate chemicals  
                of concern and identify safer alternatives to ensure  
                product safety.

              6.   Move Toward a Cradle-to-Cradle Economy to leverage  
                market forces to produce products that are  
                "benign-by-design" in part by establishing a California  
                Green Products Registry to develop green metrics and  
                tools for a range of consumer products and encourage  
                their use by businesses.

           In 2008, Assembly Bill 1879 (Feuer) and Senate Bill 509  
           (Simitian) were signed by the Governor to implement together  









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           two key pieces of a green chemistry initiative for California:  
           1) requiring DTSC to adopt regulations for the identification  
           and prioritization and evaluation of chemicals or chemical  
           ingredients in products that may be considered a "chemical of  
           concern" and their potential alternatives; and 2) requiring  
           DTSC and the Office of Environmental Health Hazard Assessment  
           to establish a Toxics Information Clearinghouse for the  
           collection, maintenance, and distribution of specific chemical  
           hazard traits and environmental and toxicological end-point  
           data and evaluate and specify the hazard traits and  
           environmental and toxicological end-points and any other  
           relevant data that are to be included in the clearinghouse.

           DTSC recently released a framework to illustrate the concept  
           of the regulations that DTSC is currently working to develop.   
           According to DTSC, the projected release date of the proposed  
           regulations is late spring/early summer and the department  
           projects completing and adopting the final regulations by the  
           end of 2010.
            
        1)Proponents' arguments  .  The supporters state that in the quest  
           for sparkling clean, germ-free homes, today's consumers have a  
           vast array of products at their disposal: detergents,  
           disinfectants, glass cleaners, carpet cleaners, stain  
           removers, air fresheners and all-purpose cleansers.  Sales of  
           cleaning products to U.S. consumers reached $7.3 billion  
           dollars in 2007.  But many consumers don't know - and the  
           labels won't tell them - that chemicals found in some ordinary  
           household products are known or suspected to cause cancer,  
           birth defects, asthma, skin sensitivities, allergic reactions  
           and other serious health effects.

           Supporters argue that current law does not require  
           manufacturers to disclose the ingredients in cleaning products  
           to consumers.  While some companies are beginning to disclose  
           cleaning product ingredients, many chemicals remain hidden,  
           particularly those found in fragrances.  Consumers who want to  
           make educated purchases are often in the dark when it comes to  
           how to purchase safe cleaning products.

           They add that similarly, institutions like hospitals and  
           schools who serve vulnerable populations are often denied  
           access to ingredient information from manufacturers.  These  









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           institutions are then forced to buy products about which they  
           know little or nothing regarding possible health hazards.   
           Even physicians treating patients who have suffered adverse  
           reactions from exposure to cleaning products cannot get access  
           to ingredient lists.

           The supporters believe that SB 928 will give consumers the  
           information they need to make educated decisions about their  
           purchases.  

         2)Opponents' Arguments  .  Opponents have provided the following  
           arguments:
         
                   The full ingredient disclosure in SB 928 is  
                unnecessary, not scientifically sound, likely to cause  
                consumer confusion and is potentially harmful to product  
                innovation.  

                  SB 928 would require redundant layers of compliance by  
                requiring manufacturers, wholesalers and retailers to  
                disclose ingredients in products they sell on their  
                websites, which will add cost to products sold in  
                California.  

                  California businesses cannot ultimately compel the  
                manufacturers that they do business with to disclose  
                ingredient information and as such would have to stop  
                selling products in California for which information  
                cannot be obtained.

                  Many small businesses do not currently maintain a  
                website because they lack the expertise to do so and the  
                cost of paying someone to build and maintain a website is  
                cost prohibitive.  The opposition feels that requiring  
                website disclosure is an impediment to small business. 

         1)Issues for further consideration  .  There are ongoing  
           discussions with all stakeholders regarding provisions to  
           address the following concerns: 1) how best to address  
           confidential business information; 2) nomenclature:  
           (constructing a uniform protocol for reporting chemical names  
           and related information); 3) enforcement of violations, and 4)  
           how best to address incidental ingredients.









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            SOURCE  :        Senator Simitian  

           SUPPORT  :       Breast Cancer Action
                          Breast Cancer Fund
                          Clean Water Action
                          Environment California
                          Environmental Working Group
                          Sierra Club
           Women's Voices for the Earth
            
           OPPOSITION  :    California Chamber of Commerce
                          California Manufacturers & Technology  
                          Association